Oh, Shut Up

The hundred and eleventh Congress, which had emitted more than a few whimpers along the way, ended with a fusillade of bangs. Reconvening for the last time after the shock of November’s Republican wave, the outgoing, still Democratic Congress legislated with unwonted vigor and speed. In the six days from December 17th until December 22nd, it sent President Obama a barrage of bills, including, in chronological order, a huge tax-cuts-and-unemployment-relief compromise package; the repeal of the dishonorable “Don’t ask, don’t tell” law; a substantial strengthening of the government’s ability to keep contaminants like E. coli out of our food; the ratification of the New START treaty with Russia; and health-care coverage for 9/11 first responders sickened by their service at Ground Zero. And on the seventh day Congress rested.

The lame duck may have been as wounded as a lawyer at a Dick Cheney shooting party, but for a week it flew like an eagle. Before that astonishing last-minute flurry, Obama and the 111th had already racked up a legislative score that put them in a league with Woodrow Wilson, Lyndon Johnson, and the two Roosevelts. The pre-midterm accomplishments included a stimulus that pulled the country back from the brink of a second Great Depression, the Code Blue rescue of the American automobile industry, firmer regulation of the financial industry, and, of course, comprehensive health-care reform.

Good. But not good enough. The Christmas rush of the lame-duck session provided a bit of holiday cheer to those who voted for Obama two years ago with such soaring hopes, but there remains a sour sense of disappointment. The packages under the tree did not include the DREAM Act, which sought to lift the threat of deportation from foreign-born people who were brought here illegally as children and have earned the right to be the Americans they already are in all but name. The tax compromise extended the unconscionable Bush cuts for the rich—the ransom that Republicans extorted for allowing any other business of any kind to be taken up at all. Earlier, Congress was unable to act on global warming, the most ominous threat facing the nation and the world: a modest bill to begin putting a price on carbon emissions passed the House but, like so much else, died in the Senate. And even the signal triumphs of the 111th—health care, financial reform, the stimulus—were far weaker than they should have been.

Some on the liberal side have blamed these shortcomings—and the midterm electoral debacle—on the President and the Democratic leaders of Congress, who have certainly made their share of mistakes: the endlessness of the health-care wrangle, the too-small size of the stimulus (though it’s not clear that a larger one could have passed), the failure to fight the high-end tax cuts before the election. But the biggest obstacles to energetic, coherent action are systemic. Our ungainly eighteenth-century legislative mechanism, drowning in twenty-first-century campaign cash, is shot through with veto points. We have three separately elected “governments” (House, Senate, Presidency), all of which must agree for anything big to happen. Our two-year election cycle leaves little time for long-acting changes to ripen and be judged fairly. That basic structure has its pluses as well as its minuses, of course. Anyway, we’re stuck with it. But there’s one big obstacle—almost as big as the rest put together—that has no pluses whatsoever, and that we don’t have to be stuck with: the arsenal of senatorial death rays that goes by the quaint name of filibuster.

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In the nineteenth century, filibusters were rarer than visible comets. For most of the twentieth, they were still rare—about as frequent as solar eclipses—and reserved for special occasions, such as killing civil-rights bills. Now they and their bastard offspring, the secret “holds” that allow a single senator to pigeonhole a bill or a nomination, are as common as sunsets—and as destructive as tsunamis. It is taken for granted that without the support of sixty of the hundred senators, the number needed to invoke “cloture,” nothing emerges from the Senate alive. The minority can’t quite rule, exactly, but it can, and does, use the rules to ruin. Even when something does get through, the marginal cost of that fifty-ninth or sixtieth vote is severe. In the absence of the filibuster, the health-care law would offer a public alternative to private insurance, the financial reform would be strong enough to close off the likelihood of another meltdown, and the very rich (and their heirs) would pay something closer to their fair share of taxes. Nearly two hundred qualified nominees for executive and judicial offices would be on the job instead of in limbo. And a climate-and-energy bill, a bill to require corporations to be open about their political spending, the DREAM Act, and dozens of other worthy measures—all of which passed the House and had majority support in the Senate—would now be the law of the land.

A couple of weeks ago, all the returning Democratic senators signed a letter to the Majority Leader, Harry Reid, telling him that they want something done about the filibuster rule when the 112th Congress opens on January 5th. And, surprisingly, something may actually happen. Senator Tom Harkin, the veteran Iowa Democrat, who has been on the case since 1995 (when, incidentally, his party was in the minority), has joined forces with newer colleagues like Oregon’s Jeff Merkley, New Mexico’s Tom Udall, Colorado’s Michael Bennet, and Missouri’s Claire McCaskill. One of the more diabolical features of the filibuster rule is that it cannot be altered except by sixty-seven votes, which is like a child’s fantasy of getting three wishes and making the third a wish for three more, ad infinitum. But there is precedent for the proposition that at the moment of a new Congress’s birth, when the Senate is without form and void, a simple majority can open all the rules for discussion and changes—and neither the discussion nor the changes it produces can be filibustered. Or so the Senate’s presiding officer—that would be Joseph Biden—could rule.

Outright abolition is almost certainly out of reach, but ideas for altering some of the filibuster’s noxious features have been bubbling to the surface. A filibuster might have to be conducted, not just threatened. Instead of the sixty votes needed to overcome a filibuster, forty votes might be required to sustain one. Filibusters might be restricted to the final passage of a given bill, instead of multiplying at every stage of the process. Holds, secret or not, might be put on hold. If the Senate votes to open the rules, it will, after inducting its new members, go into recess as usual, returning in time for the State of the Union address. In the intervening two or three weeks, there would be plenty of negotiating and horse-trading. Anything that might emerge would—like the health-care law—inevitably fall short of the ideal. But, also like that law, it would be a noticeable improvement on the status quo. It’s still a long shot, but this might be a good month to keep one’s fingers crossed. ♦

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